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Just a quick note that the New York Times has written an article about two Madoff investors who are suing the SEC for not doing its job. It will likely be a tough case for the investors/plaintiffs to prevail upon because of the doctrine of sovereign immunity (i.e. government agencies cannot be sued for actions made pursuant to their legislative mandate). However, the inspector general’s Madoff report, which in no uncertain terms castigates the SEC, is likely to be the basis of many of the investors’ complaints.

As has been widely reported, the Inspector General has released a 450 page report on the SEC’s stunning failure to uncover the Bernard Madoff Ponzi scheme. Below I have republished some of the more interesting items from the summary portion of the report (emphasis mine). While we have heard many of the details before, the description of the “egregious” incompetence is still almost unbelievable.

To access the whole report, please see OIG Madoff Report. Chairman Shapiro’s comments, reprinted below, can be found here.

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Selected sections of the Inspector General’s summary

The OIG investigation did find, however, that the SEC received more than ample information in the form of detailed and substantive complaints over the years to warrant a thorough and comprehensive examination and/or investigation of Bernard Madoff and BMIS for operating a Ponzi scheme, and that despite three examinations and two investigations being conducted, a thorough and competent investigation or examination was never performed. The OIG found that between June 1992 and December 2008 when Madoff confessed, the SEC received six [arguably 8] substantive complaints that raised significant red flags concerning Madoff’s hedge fund operations and should have led to questions about whether Madoff was actually engaged in trading. Finally, the SEC was also aware of two articles regarding Madoff’s investment operations that appeared in reputable publications in 2001 and questioned Madoff’s unusually consistent returns.

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One effort was made to verify Madoff’s trading with an independent third-party, but even after they received a very suspicious response, there was no follow-up. The Assistant Director sent a document request to a financial institution that Madoff claimed he used to clear his trades, requesting records for trading done by or on behalf of particular Madoff feeder funds during a specific time period. Shortly thereafter, the financial institution responded, stating there was no transaction activity in Madoff’s account for that period. Yet, the response did not raise a red flag for the Assistant Director, who merely assumed that Madoff must have “executed trades through the foreign broker-dealer.” The examiners did not recall ever being shown the response from the financial institution, and no further follow-up actions were taken.

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At a crucial point in their investigation, the Enforcement staff was informed by a senior-level official from the NASD that they were not sufficiently prepared to take Madoff’s testimony, but they ignored his advice. On May 17, 2006, two days before they were scheduled to take Madoff’s testimony, the Enforcement staff attorney contacted the Vice President and Deputy Director of the NASD Amex Regulation Division to discuss Madoff’s options trading. The NASD official told the OIG that he answered “extremely basic questions” from the Enforcement staff about options trading. He also testified that, by the end of the call, he felt the Enforcement staff did not understand enough about the subject matter to take Madoff’s testimony. The NASD official also recalled telling the Enforcement staff that they “needed to do a little bit more homework before they were ready to talk to [Madoff],” but that they were intent on taking Madoff’s testimony as scheduled. He testified that when he and a colleague who was also on the call hung up, “we were both, sort of, shaking our heads, saying that, you know, it really seemed like some of these [options trading] strategies were over their heads.” Notwithstanding the advice, the Enforcement staff did not postpone Madoff’s testimony.

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During his testimony, Madoff also told the Enforcement investigators that the trades for all of his advisory accounts were cleared through his account at DTC. He testified further that his advisory account positions were segregated at DTC and gave the Enforcement staff his DTC account number. During an interview with the OIG, Madoff stated that he had thought he was caught after his testimony about the DTC account, noting that when they asked for the DTC account number, “I thought it was the end game, over. Monday morning they’ll call DTC and this will be over . . . and it never happened.” Madoff further said that when Enforcement did not follow up with DTC, he “was astonished.”

This was perhaps the most egregious failurein the Enforcement investigation of Madoff; that they never verified Madoff’s purported trading with any independent third parties. As a senior-level SEC examiner noted, “clearly if someone … has a Ponzi and, they’re stealing money, they’re not going to hesitate to lie or create records” and, consequently, the “only way to verify” whether the alleged Ponzi operator is actually trading would be to obtain “some independent third-party verification” like “DTC.”

A simple inquiry to one of several third parties could have immediately revealed the fact that Madoff was not trading in the volume he was claiming.

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The OIG summary concludes that:

As the foregoing demonstrates, despite numerous credible and detailed complaints, the SEC never properly examined or investigated Madoff’s trading and never took the necessary, but basic, steps to determine if Madoff was operating a Ponzi scheme. Had these efforts been made with appropriate follow-up at any time beginning in June of 1992 until December 2008, the SEC could have uncovered the Ponzi scheme well before Madoff confessed.

The OIG’s matter of fact concluding statement that “the SEC could have uncovered” the fraud rings hollow, especially for the people who lost life savings needlessly.

We’ve published a number of thoughtful pieces on this blog from Chris Addy, president and CEO of Castle Hall Alternatives (see, for example, article on Hedge Fund Auditors). Today we are publishing a press release which announces a new white paper from Castle Hall detailing the various reasons which hedge funds fail. The press release also describes a new web database called HedgeEvent which was created by Castle Hall and details a number of hedge fund operational failures over the last few years.

I found the white paper to be interesting. I would imagine that some fund of funds and other types of hedge fund investors would find the information useful. A couple of interesting facts from the whitepaper:

The most common causes of operational failure in hedge funds are (i) theft and misappropriation and (ii) existence of assets (i.e. Ponzi schemes).

Long/short equity and managed futures are the strategies which are most likely to be subject to operational failure.

MONTREAL–(BUSINESS WIRE)–Castle Hall Alternatives, the hedge fund industry’s leading provider of operational due diligence, today published its latest White Paper, ‘From Manhattan to Madoff: the Causes and Lessons of Hedge Fund Operational Failure.’ The Paper’s analysis and findings are based on HedgeEvent, a comprehensive, web-based database of more than 300 operational events, now available to Castle Hall’s due diligence clients. HedgeEvent supplements HedgeDiligence, the firm’s existing client web portal.

The White Paper may be downloaded from www.castlehallalternatives.com/publications.php

Chris Addy, Castle Hall’s CEO, said “the colossal fraud perpetrated by Bernie Madoff, together with a number of other recent cases, has made investors acutely concerned by the risk of operational ‘blow ups’. However, there has been little systematic study of operational failure, meaning that investors have limited guidance as to the extent of this problem.”

“The creation of HedgeEvent, which has taken more than two years to compile, has enabled us to summarize key metrics related to hedge fund operational failure” said Addy. “From Manhattan to Madoff analyzes operational events by number, estimated loss, causal factor and by the strategy of the funds involved.”

HedgeEvent contains 327 cases of hedge fund operational failure through June 30, 2009. Madoff, with an estimated financial impact of $64 billion, is by far the largest; the remaining cases have an aggregate estimated financial impact of approximately $15 billion. Of the 327 operational events, 121 have an estimated impact of $10 million or more, and 31 of at least $100 million.

“While operational failures are material – Madoff spectacularly so – it does not seem that fraud is pervasive in the hedge fund industry” said Addy. “Investors should, however, be very focused on the lessons which can be learned from those hedge funds which did generate large losses. Many of these were well established firms which attracted capital from reputable investors.”

Across all Events, the most common causes of operational failure are theft and misappropriation followed by existence of assets (the manager claimed to own fake securities or operated a Ponzi scheme where reported assets did not exist). The most common strategies subject to operational failure are long / short equity followed by managed futures. It is notable that investors have traditionally viewed these strategies, holding largely exchange-traded securities, as straightforward with low operational risk.

“HedgeEvent is an invaluable tool for both Castle Hall and our clients” said Addy. “A lot can be learned from historical events: better knowledge can help investors avoid the losses, both monetary and reputational, of hedge fund operational failure.”

About Castle Hall Alternatives

Castle Hall Alternatives helps leading institutional investors, fund of funds, family offices and endowments identify and manage hedge fund operational risk. Castle Hall’s team draws on more than 30 years of direct due diligence experience and is the industry’s largest, dedicated provider of operational due diligence. More information is available at www.castlehallalternatives.com

The National Futures Association (NFA) proposed new amendments to Compliance Rule 2-45 regarding prohibition of loans by pools to commodity pool operators and related parties. The amendment states that no Member CPO may permit a commodity pool to use any means to make a direct or indirect loan or advance of pool assets to the CPO or any other affiliated person or entity. The amendment is proposed in response to a recent NFA investigation which revealed that CPOs had misappropriated pool funds through improper loans from pools to the CPOs or related entities. The full NFA proposal can be viewed below.

PART 2 – RULES GOVERNING THE BUSINESS CONDUCT OF MEMBERS REGISTERED WITH THE COMMISSION

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RULE 2-45. PROHIBITION OF LOANS BY COMMODITY POOLS TO CPOS AND AFFILIATED ENTITIES.

No Member CPO may permit a commodity pool to use any means to make a direct or indirect loan or advance of pool assets to the CPO or any other affiliated person or entity.

EXPLANATION OF PROPOSED AMENDMENTS

In February, NFA took two Member Responsibility Actions (“MRAs”) against three NFA Member commodity pool operators (“CPOs”). Although the basis of both MRAs was the CPOs’ failure to cooperate with NFA in an investigation, the limited investigation that NFA was able to perform revealed that the CPOs had misappropriated pool funds through improper loans from pools to the CPOs or related entities. The CFTC charged all three of the CPOs with misappropriating pool assets through improper loans, and all three were charged criminally with fraud.

These two matters are not the first instances of CPOs misappropriating pool participant funds through direct or indirect loans from a pool to the CPO or a related entity. Over the years, there have been a number of regulatory actions involving this type of fraud. Given the significant losses suffered by pool participants as a result of these improper loans, NFA is proposing to prohibit direct or indirect loans from commodity pools to the CPO or any affiliated person or entity.

NFA staff discussed this matter with NFA’s CPO/CTA Advisory Committee, which supported prohibiting loans because it believes that absent extraordinary circumstances there is no legitimate reason for a pool to make a direct or indirect loan to its CPO or a related party. The Committee indicated, however, that participants, including a CPO’s principal, should not be prevented from borrowing against their equity interest in the pool.

NFA Compliance Rule 2-45 provides for a complete prohibition of direct or indirect loans or any advance of pool assets between a pool and its CPO or any other affiliated person or entity. NFA recognizes that there may be circumstances where a carve out to this prohibition may be appropriate, such as where a CPO permits participants, including a pool’s general partner, to borrow against their equity interest in the pool in lieu of a withdrawal, provided that the loan is collateralized by the participant’s interest in the pool. NFA believes that these types of situations are best handled on a case by case basis, with the CPO seeking a no-action letter from NFA.

This week alone the Commodities Futures Trading Commission issued 5 separate press releases regarding various frauds and ponzi schemes. As we have noted many times before investors should make sure they conduct adequate due diligence into their managers. It also goes without saying, but managers should not engage in fraudulent conduct, make misrepresentations to investors, lie to investors or regulators, or do anything that is contrary to what is stated in the investment program offering documents. Four of the press releases are reprinted below.

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Release: 5646-09
For Release: April 9, 2009
New York Court Enters Order Imposing a $240,000 Fine and Other Sanctions against New York State Resident Michael Vitebsky in a Foreign Currency Scam

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) announced today that it obtained $240,000 in sanctions and a permanent injunction in a consent order against Michael Vitebsky, a resident of New York State, in connection with his participation in an illegal foreign currency (forex) boiler room operation and for violating the anti-fraud provisions of the Commodity Exchange Act. The order also imposes permanent trading and registration bans on Vitebsky.

The order was entered by Judge Leo I. Glasser of the U.S. District Court for the Eastern District of New York and stems from a CFTC complaint filed in 2003 (see CFTC News Release, 4852-03, October 16, 2003). The order enters findings of fact that Vitebsky and others participated in a scheme in which Vitebsky used A.S. Templeton Group, Inc., a company of which he was the president and treasurer, to fraudulently solicit funds from customers for forex transactions.
According to the order, Vitebsky helped divert customer funds for unauthorized purposes and willfully made false representations to customers regarding the profitability of their accounts.

The CFTC would like to thank the U.S. Attorney’s Office for the Eastern District of New York for their assistance.

The following CFTC staff members are responsible for this case: Sheila Marhamati, Philip Rix, Steven Ringer, Lenel Hickson, Jr., and Vincent McGonagle.

WASHINGTON, DC — The U.S. Commodity Futures Trading Commission (CFTC) announced today that it charged Steven Leigh Shakespeare, and his company, Guardian Futures, Inc., both of Austin, Texas, with fraud and unauthorized trading of customer accounts, resulting in combined customer trading losses of at least $196,000.

The CFTC complaint, filed on April 8, 2009, in the U.S. District Court for the Western District of Texas, alleges that Shakespeare engaged in a series of unauthorized transactions and fraudulent acts in the accounts of Plains Grain Company, Inc. and Evans Grain Marketing LLC. The complaint charges that Shakespeare, throughout the course of the unauthorized transactions, made misrepresentations and omitted material facts to customers and to Alaron Trading Corporation, the futures commission merchant to whom Shakespeare had introduced the customer accounts.

On the same day the complaint was filed, the court entered a statutory restraining order preserving books and records and providing the CFTC immediate access to such books and records.

In its continuing litigation, the CFTC seeks restitution to customers, disgorgement of all ill-gotten gains, civil monetary penalties, a permanent injunction, and trading prohibitions, among other sanctions.

The CFTC appreciates the assistance of the office of the United States Attorney for the Western District of Texas.

The following CFTC Division of Enforcement staff are responsible for this case: Timothy J. Mulreany, David Reed, Michael Amakor, Paul Hayeck, and Joan Manley.

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Release: 5644-09
For Release: April 9, 2009

William D. Perkins of St. George, Utah Ordered to Pay More Than $2 Million in Sanctions in CFTC Ponzi Scheme Action

Universe Capital Appreciation Commodity Pool, Operated by Perkins, Part of Larger CFTC Action that Has Resulted in More than $45 Million in Judgments

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) announced that it obtained a federal court order against William D. Perkins of St. George, Utah and Tax Accounting Office (TAO), Perkins’ private bookkeeping service, for more than $2 million in an anti-fraud action brought by the CFTC in 2006. The CFTC action alleged that Perkins fraudulently solicited $3.4 million from investors in a commodity pool he operated under the name Universe Capital Appreciation LLC. (See CFTC Release 5240-06 October 5, 2006.)

The opinion and order were entered on March 25, 2009, by U.S. District Judge Robert B. Kugler of the District of New Jersey.

Specifically, the order requires Perkins to repay $1.6 million to investors and a civil monetary penalty of $354,462, and prohibits Perkins from engaging in any business activities related to commodity futures or options trading. The court also ordered relief defendant TAO to repay $76,000 of investor money in which TAO had no legitimate interest.

In the opinion, Judge Kugler found that Perkins was reckless to solicit funds for his commodity pool without making a reasonable inquiry into the validity of representations that third parties made regarding the performance of the “superfund”, especially where Perkins had personal experience in three previous failed high yield investment schemes with one of the parties in which they had lost over $2 million of participant funds.

The CFTC complaint alleged that Perkins touted Universe Capital Appreciation LLC as a way for investors with less than $100,000 to participate in a so-called “superfund” that Perkins claimed was making “astonishing” profits of approximately 100 percent annually trading financial futures contracts. In fact, the CFTC complaint alleged that the “superfund” was itself a massive fraud that was the subject of other CFTC actions resulting in over $45 million in judgments. (See CFTC Press Releases 5447-08 February 7, 2008 and 5357-07, July 23, 2007.)

Judge Thomas A. Varlan issued the order that freezes the assets of Centurion and ATS and prohibits Centurion from further violations of the Commodity Exchange Act, as charged. The court determined that the preliminary injunction was necessary to protect the public from further loss and damage and to enable the CFTC to fulfill its statutory duties.

As alleged, Bolze and Centurion operated a Ponzi scheme for at least six years that defrauded more than 100 investors and caused approximately $20 million in investor losses. ATS was charged as a relief defendant for receiving funds from defendants to which it was not entitled. Bolze and Centurion told investors that they were pooling and investing customer money in S&P 500 and NASDAQ 100 stock index commodity futures, but instead misappropriated most of the funds, according to the complaint.

Bolze Arrested on March 12

On March 12, 2009, Bolze was arrested in Pennsylvania by federal authorities in connection with a related criminal complaint. However, Bolze was in the custody of the U.S. Marshal’s Service at the time of the March 31 hearing. As a result, Judge Varlan’s preliminary injunctive order did not address the CFTC’s charges against him.

In the continuing litigation, the CFTC is seeking permanent injunctive relief, return of funds to defrauded participants, repayment of ill-gotten gains, civil penalties, and other equitable relief.

March 24, Chicago – National Futures Association (NFA) announced today that it has taken an emergency enforcement action against GlobeFX Club, Inc. (GlobeFX Club), a Commodity Pool Operator located in Homestead, Florida. Effective immediately, the Member Responsibility Action (MRA) is deemed necessary to protect pool participants, customers and other NFA Members because GlobeFX Club has provided contradictory information in regards to whether it is conducting business, has customer accounts and is operating a pool. NFA has been unable to determine the nature of GlobeFX Club’s business, the identities of its customers, the treatment of customer funds and the identity of two individuals who purportedly loaned money to the firm. The firm has also failed to produce books and records requested by NFA and answer questions concerning its operations.

The MRA suspends GlobeFX Club from NFA membership until further notice. GlobeFX Club is prohibited from soliciting or accepting any customer or pool participant funds or placing trades for any pool that its operates or customer accounts that it holds. Additionally, the MRA prohibits GlobeFX Club from disbursing or transferring any funds from any accounts without prior NFA approval.

The MRA will remain in effect until GlobeFX Club has demonstrated that it is in complete compliance with all NFA requirements. GlobeFX Club may request a prompt hearing before NFA’s Hearing Committee.

The complete text of the MRA can be found on NFA’s Website (www.nfa.futures.org).

NFA is the premier independent provider of innovative and efficient regulatory programs that safeguard the integrity of the futures markets.

This past week and a half has proven to be a busy time for the CFTC’s enforcement divisions as a number of actions have been released to the public. The four actions below showcase the unlawful and unsavory behavior of four groups. Specifically, two of the actions below provide details of two more Ponzi schemes and the other two actions involve misrepresentations and lies. As we’ve discussed before hedge fund investors have many tools to protect themselves from these sorts of actions. Simple hedge fund due diligence will go a long way towards protecting an investment.

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Release: 5612-09
For Release: February 11, 2009
CFTC Orders Former Bank Trader and New York City Resident to Pay $360,000 Penalty in Connection with False Trading Reports Submitted to His Former Employer, Bank of America

Washington, DC — The U.S. Commodity Futures Trading Commission (CFTC) today settled charges against Michael Moster for submitting false reports to the Bank of America in Chicago, where he once worked as a trader, and ordered Moster to pay a $360,000 civil penalty.

The CFTC issued an order on February 11, 2009, which finds that, during a three-day period in January 2004, Moster, a former proprietary trader for the Bank of America, falsely reported to the bank that he purchased 4,000 Treasury futures contracts to conceal the risk associated with large unauthorized positions in Treasury bonds that he established over the same time period, by making it appear as if the long futures position hedged the Treasury bond risk. By the following week, the fictitious trades inflated the value of his trading book by over $12 million, the order finds. The sale of Moster’s unauthorized Treasury bond position resulted in a loss of approximately $12.2 million to the Bank of America.

Based upon the same conduct, Moster pled guilty on September 18, 2008, to a one-count violation of making false entry into the books and records of a bank in the Southern District of New York. Under the criminal sentencing guidelines, Moster will be required to make full restitution of the over $12 million loss he caused to the Bank of America. The CFTC’s order recognizes the restitution made in the context of the criminal case and provides that Moster must pay and satisfy any criminal restitution obligation before his payment of the CFTC civil monetary penalty.

The following CFTC Division of Enforcement staff members are responsible for this case: Ken Koh, Todd Kelly, Peter Haas, Paul Hayeck, and Joan Manley.

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Release: 5610-09
For Release: February 10, 2009
CFTC Seeks Freeze of Assets in Oklahoma Ponzi Scheme Involving Over $30 Million

Washington, DC – The Commodity Futures Trading Commission (CFTC) announced that today it filed an enforcement action against Mark S. Trimble, of Edmond, Oklahoma, and his company, Phidippides Capital Management LLC (PCM), with offices in Oklahoma City. Trimble, who controlled Phidippides, also managed a private hedge fund named Phidippides Capital LP, which the CFTC’s complaint alleges was a Ponzi scheme.

CFTC Seeks Court Order Freezing Defendants’ Assets

In conjunction with the filing of the complaint today in the U.S. District Court for the Western District of Oklahoma, the CFTC is seeking a statutory restraining order freezing defendants’ assets and preserving records. Trimble has consented to the entry of an asset freeze order.

The CFTC’s complaint alleges that, from at least 2005 to the present, Trimble and PCM operated a $34 million hedge fund with approximately 60 investors and traded partly in the name of Phidippides Capital, a Delaware company incorporated by Trimble. Since at least October 2007, Trimble and PCM allegedly issued false account statements, failed to disclose the fund’s actual multi-million trading losses, and operated the fund as a Ponzi scheme, paying participant redemptions based on the fund’s fabricated profitability. Additionally, defendants allegedly received over $1 million in management fees based on false reports of trading profits.

Trimble Used Email to Notify Investors that He Had Not Been “Honest” About the Fund’s Trading Results

According to the complaint, Trimble’s activities were exposed in late January 2009, after Trimble provided the Federal Bureau of Investigation a fictitious 2008 year-end trading account showing millions of dollars in trading profits that did not square with actual trading statements issued by Trimble’s brokerage firm that disclosed millions of dollars in trading losses. Trimble subsequently stated in an email sent to his brokerage firm, and addressed to “Family, Friends, and Clients,” that he had not been “honest” about the hedge fund’s trading results, explaining: “The reason our balances are off is because I could not look myself in the mirror and face all of you and notify you that in the last quarter of 2008 we lost all the profits for the year and then some.”

Stephen J. Obie, CFTC Acting Director of the Division of Enforcement commented: “Through the swift action of CFTC staff, millions of dollars have been frozen, which ultimately we will seek to return to the victims Trimble deceived by his scheme. The CFTC continues to zealously prosecute these lecherous schemes, so that as many assets can be preserved as possible as we fulfill our vital mission to protect customers from fraud and abuse.”

The CFTC appreciates the assistance of the Securities and Exchange Commission and the Financial Crimes Enforcement Network.

The following CFTC Division of Enforcement staff members are responsible for this case: Rosemary Hollinger, Scott Williamson, Richard Wagner, and Ken Hampton. CFTC Auditors Thomas J. Bloom, Shauna Wright-Regas, and Lauren Corn also are working on this matter.

Parish Currently Serving a Sentence of More than 24 years in Federal Prison for Related Criminal Violations

Washington, DC — The U.S. Commodity Futures Trading Commission (CFTC) announced today that the Honorable David C. Norton of the U.S. District Court for the District of South Carolina entered an order settling charges alleging that Albert E. Parish and Parish Economics LLC, both of Charleston, South Carolina, lied to customers and misappropriated millions of dollars in customer funds (see CFTC Press Release 5320-07, April 19, 2007).

According to the order entered on February 2, 2009, between 1986 and March 2007, Parish and Parish Economics fraudulently solicited approximately $40 million in investments for their commodity futures pool. Parish and Parish Economics misrepresented to pool participants that funds would be invested in commodity futures when, in reality, Parish misappropriated the vast majority of funds for his personal use. Parish and Parish Economics also provided false futures account statements to pool participants and failed to provide required pool disclosure documents.

The order permanently bars Parish and Parish Economics from further violating certain provisions of the Commodity Exchange Act and the CFTC’s regulations and from engaging in any commodity-related activity. Parish is currently serving a sentence of more than 24 years in federal prison for related criminal violations. In lieu of an award of restitution and civil monetary penalties, the order recognizes that Parish will be subject to a criminal judgment restitution obligation in excess of $40 million.

The CFTC would like to thank James A. Rue of the Securities and Exchange Commission and John H. Douglas of the U.S. Attorney’s Office for the District of South Carolina for their assistance in this matter.

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) filed an enforcement action today against Charles “Chuck” E. Hays and Crossfire Trading, LLC (Crossfire), both of Rosemount, Minnesota, charging them with fraud and misappropriation in connection with a commodity pool Ponzi scheme.

In conjunction with the filing of the complaint today in the U.S. District Court for the District of Minnesota, the CFTC is seeking a statutory restraining order freezing defendants’ assets and preserving records.

The CFTC’s complaint alleges that, from January 2006 to the present, Hays and his company, Crossfire, a purported commodity pool, fraudulently solicited and accepted more than $5.5 million from at least three individuals and a charitable foundation for the purpose of trading stock index and crude oil futures.

Hays, according to the complaint, convinced at least one person to invest in Crossfire by representing verbally and in fabricated account statements — issued on Crossfire’s letterhead — that Crossfire earned consistent profits trading commodity futures with no losing months. However, as charged in the complaint, Crossfire has never had an active commodity futures trading account. Additionally, in an attempt to alleviate at least two investors’ suspicions as to what Hays was actually doing with their money, Hays provided an account statement for the Crossfire pool fabricated to appear as if it were issued by a legitimate brokerage company by using that brokerage’s letterhead. This false account statement indicated that Crossfire maintained a trading account at the brokerage with over $37 million. As alleged, that account is nonexistent.

Furthermore, the complaint charges Hays with misappropriating investor funds to purchase a $4 million yacht, and for other purposes.

“Hays ran his Ponzi scheme from his yacht, but was grounded when the tide turned as Federal authorities exposed this egregious fraud,” said CFTC Acting Director of Enforcement Stephen J. Obie.

The CFTC complaint seeks orders requiring the defendants to provide the CFTC with continuing access to books and records and to make an accounting with information necessary to determine the actual amounts of net contributions and profits or losses. The CFTC also requests that the court issue orders of preliminary and permanent injunction against the defendants, a return of alleged ill-gotten gains, repayments to defrauded investors, monetary penalties, and other relief.

The CFTC appreciates the assistance of the United States Attorney’s Office for the District of Minnesota, the Department of Justice, the United States Postal Inspection Service, and the Federal Bureau of Investigation in this action. Hays was arrested this morning by Federal authorities.

February 9, Chicago – National Futures Association (NFA) announced today, that it has taken an emergency enforcement action against Mark E. Bloom, a Commodity Pool Operator (CPO) located in New York City. Bloom has failed to cooperate with NFA in its investigation of allegations that Bloom and North Hills Management, LLC, operated an illegal commodity pool, and exercised unlawful control over $8 million which was given to them by a charitable trust and a corporation owned by that trust for the purpose of making investments on their behalf. North Hills Management, LLC is a former CPO and Commodity Trading Advisor Member of NFA of which Bloom was principal. The Member Responsibility Action (MRA) is deemed necessary to protect the commodity futures markets, pool participants, customers and other NFA Members.

Effective immediately, the MRA suspends Bloom from NFA membership and associate membership indefinitely. The MRA also prohibits Bloom from soliciting or accepting any customer or pool participant funds or placing trades for pools that he operates. Additionally, Bloom and any other person acting on his behalf, is prohibited from disbursing or transferring any funds from any accounts which he owns or controls without prior approval from NFA. NFA Members who carry accounts in the name of, controlled by or advised by Bloom are prohibited from disbursing funds to Bloom or to any entity or account controlled by him without prior NFA approval. The MRA provides that it will remain in effect until such time Bloom has demonstrated to NFA that he is in complete compliance with all NFA Requirements. Bloom may request a hearing before an NFA Hearing Panel.

NFA is the premier independent provider of innovative and efficient regulatory programs that safeguard the integrity of the futures markets.

February 9, Chicago – National Futures Association (NFA) has ordered Progressive Investment Funds (Progressive), a Commodity Pool Operator located in Glenrock, New Jersey, to withdraw from NFA membership and not reapply. Victor E. Cilli, Progressive’s sole principal, also agreed to withdraw from NFA membership. If Cilli reapplies for NFA membership in the future, his application will be subject to certain conditions, including a requirement that he pay a $10,000 fine. The Decision, issued by an NFA Hearing Panel, is based on a Complaint filed in August 2008 and a settlement offer submitted by Progressive and Cilli.

The Complaint charged that Progressive and Cilli had failed to produce certain books and records requested by NFA as part of an inquiry relating to a pool operated by Progressive. NFA previously issued a Member Responsibility Action against Progressive and Cilli in June 2008. See previous press release.
NFA is the premier independent provider of innovative and efficient regulatory programs that safeguard the integrity of the futures markets.

Washington, D.C., Jan. 21, 2009 — The Securities and Exchange Commission today charged Arthur Nadel of Sarasota, Fla., with fraud in connection with six hedge funds for which he acted as the principal investment advisor. According to the SEC’s complaint, Nadel provided false and misleading information for dissemination to investors about the funds’ historical returns and falsely overstated the value of investments in the funds by approximately $300 million. Continue reading →

The hedge fund industry has been shaken by volatile financial markets and the Madoff investment scandal of December 2008. While the hedge fund and investment management industries are changing because of these twin forces, many people are looking back to try to piece together what has happened and more importantly why it happened. One primary source will definitely be “The World’s Largest Hedge Fund is a Fraud” – a whistleblower manifesto provided to the SEC on November 7, 2005 by Harry Markopolos. This article provides a link to the manifesto (Madoff Whistleblower Report), and discusses the observations and predictions therein. Continue reading →